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The Implications of Shreya Singhal v. Union of India for Intermediaries and Internet Users

The Internet should be the virtual equivalent of a public park or a town square, where robust (and often fiery) public debate should be expected, encouraged and protected, and it is not just ordinary users that feel this way. The intermediaries that bring users together are equally invested in minimizing interference with this vibrant medium, and last Tuesday’s verdict in Shreya Singhal v. Union of India was a welcome development for all those who create, vitalize and access this ever-evolving space.

Section 66A - Death By Many Cuts

This judgment will, perhaps, be remembered most in days to come because it struck down Section 66A of the Information Technology Act (“IT Act”) as violative of Article 19(1)(a) of the Constitution of India (which safeguards “freedom of speech and expression”). Section 66A punished online speech by creating a number of vaguely defined categories, almost as if it was customized for arbitrary viewpoint discrimination by the government. You could be punished for sending information through a “computer resource or communication device” if it was “grossly offensive”, or “menacing”, or sending an email that caused “annoyance” or “inconvenience”. However, as per Article 19(2) of the Constitution, the only permissible limitations on freedom of speech are “reasonable restrictions” introduced by the legislature “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” The Court demonstrated that the categories created by Section 66A did not have a proximate nexus with any of the permissible grounds for restricting speech under Article 19(2).

Clearly, the Supreme Court was concerned primarily about Internet users and the quality of discussion and debate online while striking down Section 66A. This is obvious from that fact that the judgment places emphasis on Section 66A being “unconstitutionally vague”, with no “demarcating line” to guide either those accused of committing an offence, or those responsible for enforcement. It then shifted focus from the individuals who would be affected to the “chilling effect” on the quality of discourse that that would result from the “overbreadth” of Section 66A, which was capable of punishing even protected political speech so long as some individual or group complained that it was grossly offensive, annoying, etc.

In mapping the effects of this decision, however, it is important to understand the unique architecture of the internet, where “intermediaries” - including search engines, social networks, ISPs, e-commerce websites, and others - are crucial in providing a connection between those who disseminate and receive information, like third parties controlling the keys to a public forum in the physical world. These intermediaries often have an abiding interest in the freedoms enjoyed by netizens within this space. Information intermediaries like Google rely on the free flow of information to be able to provide a comprehensive index of the Internet, while social networks like Facebook rely on their users’ ability to freely share their thoughts with other users in order to provide an attractive platform for social interaction and reinforce the “network effects” that draw new users to their communities. An overbroad law like Section 66A also often put intermediaries in conflict with their own internal content standards, which reflected community norms that were almost always significantly more tolerant and permissive than Section 66A. The Court’s ruling therefore directly benefits both users and intermediaries, whose interests in the online space being a free and open public forum are broadly aligned.

We can also expect this decision to create spill-over effects, by curbing censorship in other spheres of electronic media. For instance, the Cable Television Networks (Regulation) Act, 1995 actually allows the Central Government to prohibit the transmission of a programme that “criticizes, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country.” The judgment in Shreya Singhal will strengthen challenges to such statutory provisions which, like Section 66A IT Act, arm the government with overbroad censorship powers susceptible to arbitrary and politically-managed application.

Section 79 - No More Outsourced Censorship

A significant (if overlooked) part of the judgment was the Court’s “reading down” of Section 79 of the IT Act, a provision that holds great significance for online media in India by providing a “safe harbour” from liability for user-generated content. Intermediaries that comply with certain conditions (including expeditious “takedown” of content deemed unlawful) are not liable for content generated by users. In practice, this seemingly beneficial provision proved to be a double-edged sword for intermediaries, who faced much uncertainty over the extent of their obligation to take down content. This ambiguous section requires an intermediary to act swiftly “upon receiving actual knowledge” of unlawful content hosted on its service. It was unclear what “actual knowledge” meant; intermediaries especially feared being required under the section to actively police their own services for content deemed unlawful under Indian law - an impossible task for most intermediaries given the sheer size of their services. For example, over 300 hours of video are uploaded to YouTube every minute. It is impossible to sift through data at this scale to determine its legality, whether by human or automated means.

Recognizing these legitimate concerns, the Court re-interpreted “actual knowledge” to mean “actual knowledge that a court order has been passed asking [the intermediary] to expeditiously remove or disable access to certain material”. The Court also held that any “takedown notice” issued under Section 79 “must strictly conform to the subject matters laid down in Article 19(2)...” This simple re-interpretation has significant implications for Internet intermediaries in India. First, it affirms that intermediaries are not required by law to actively police their services for content deemed unlawful under Indian law, an inherently futile task. Second, it means that intermediaries shall no longer be in the inappropriate position of determining whether specific content is lawful or unlawful under Indian law. This is squarely a question of law for the judiciary to decide, and the Court’s ruling puts an end to the “outsourcing of censorship” to intermediaries by the government previously enabled and encouraged by s.79. Third, it frees intermediaries from any legal obligation to act directly upon complaints from private parties (although they are of course free to do so in accordance with their terms of use, community standards, or other internal policies).

The Court’s short but profound ruling on intermediary liability has, in one stroke, significantly eased the business environment for online media and the broader digital economy in India – an unfulfilled promise implicit in the present central government’s slogans of “Digital India” and “Make in India”.

Section 69A - The Censor’s Redoubt?

The only part of the Supreme Court’s judgment which one can legitimately question is its decision to uphold Section 69A of the IT Act, which grants the central government the power to direct ISPs to block access to content. It is a very powerful tool for censorship, and implicates the same rights to freedom of expression and knowledge that the Court found Section 66A to violate. Did the Court miss an opportunity to subject Section 69A to greater scrutiny?

Section 69A gives the executive branch wide-ranging power to block content online. Rules formulated under the section create two alternate procedures for blocking content. Under the standard procedure, a government committee must make a recommendation to the Secretary of the Department of Electronics and IT, on whose approval the blocking order is issued to the intermediary concerned. The committee shall have made a “reasonable effort” to identify the concerned intermediary, who may then get a hearing before the committee. But there is also an alternate procedure for emergency cases “for which no delay is acceptable”, which bypasses the standard procedure. In such cases, the Secretary may directly issue a blocking order, and the committee described above sits ex post facto to determine its validity.

The Court found Section 69A to constitute “a narrowly drawn provision with several safeguards”, upholding its constitutionality. However, this is a contestable view for multiple reasons. First, the blocking procedure is contained entirely within the executive branch, making it much more susceptible to abuse for political ends than a judicial procedure. Second, the uploader of the content has no role (or opportunity to be heard) in the procedure. Third, the alternate “emergency” procedure is particularly susceptible to abuse. It is quite easy to imagine the majority of cases being plausibly shoehorned into the “emergency” procedure, especially in the absence of any clear limiting principle as to its use. It is therefore an attractive “path of least resistance” for online censorship. Fourth, the blocking procedures are completely clandestine in their operation. The s.69A rules require that proceedings be kept confidential, thereby shielding online censorship from public and judicial scrutiny. The Court upheld this section on the basis that “reasons [for blocking] have to be recorded in writing...so that they may be assailed in a writ petition...” But it is hard to imagine such a remedy being availed in the near-complete absence of any publicly available record of censorship proceedings under Section 69A. The only solution for those challenging a proceeding under Section 69A in a writ petition would be to seek production of the record by the government before Court.

Therefore, to ensure that Section 69A is not misused, both users and intermediaries will need to proactively initiate legal proceedings against clandestine censorship by the executive to preserve the integrity of the internet as a public forum, completing the circle that the Supreme Court has left only slightly incomplete.